Sony loses another round in DualShock lawsuit

An expert witness in Sony's battle with Immersion Corporation is deemed …

Sony's battle with Immersion Corporation over technology that makes gaming controllers vibrate has taken another turn as a federal judge dismisses Sony's latest attempt to shake free of the suit. The defeat could mean the end of the road for Sony's defense, which has been unsuccessful in its various attempts to rebut Immersion's claims.

Immersion Corp. is the holder of US patents 6,275,213 and 6,424,333, covering "haptic feedback," i.e., the use of computer-controlled vibrating motors to provide tactile feedback to a user in a game or other application. Filed in 1995 but not approved until 2000, the patent affects both controllers and games.

Sony's struggle with Immersion dates back to 2002, when Immersion came after Sony and its DualShock vibration feedback system for controllers. Immersion also pursued Microsoft and its controllers, but Microsoft settled with the company and entered into a licensing agreement, leaving Sony to fend for itself. In September of 2004, Sony lost a jury trial and was ordered to pay US$82 million in damages for infringing on Immersion's patents. Half a year later in March of 2005, Sony lost an appeal and damages were revised to nearly $91 million.

In this latest round, Sony argued that Immersion was holding back evidence and requested that the original verdict be tossed out. They argued that inventions of Craig Thorner—once a consultant for Immersion—were not fully and properly disclosed. Sony argued that the full body Thorner's work on haptic feedback reveals weaknesses in Immersion's patent claims, and that such weaknesses are grounds for a new trial.

US District Judge Claudia Wilken has sided with Immersion. The problem is Mr. Thorner. While Thorner did once work for Immersion, he has also received a $150,000 payment from Sony for royalties and a purchase option on another patent. Although the money in question appears to be technically unrelated to Thorner's testimony, Wilken wrote that Thorner's testimony was suspect and that it was quite possible that he viewed his testimony as a favor to Sony. Since Thorner's testimony serves as the basis for Sony's new attack on Immersion's patents, Wilken's ruling effectively puts this line of appeal to rest.

Another appeal in the US Court of Appeals for the Federal Circuit is expected to be heard this year. The appeal will be Sony's last chance to prove that Immersion's patents are inapplicable, or else be enjoined from selling a host of products, including games and controllers.

An often overlooked aspect of this case relates to the patents themselves. While vague in the way that patents sometimes are, they are not so vague as to cover any kind of tactile feedback present in a device. Sony's arguments have taken a two-pronged approached, both challenging the validity of Immersion's patents while also arguing that their own DualShock system is based on another set of technologies altogether, including some covered by patents owned by Logitech. These arguments have failed thus far, and Sony is now facing the real possibility of being forced to license Immersion's technology for a court-mandated fee, or halt the selling of a number of successful products. At a projected licensing cost of at least $30 million a year, Sony will likely fight on until the Appeals Gauge reads empty.

Ken Fisher / Ken is the founder & Editor-in-Chief of Ars Technica. A veteran of the IT industry and a scholar of antiquity, Ken studies the emergence of intellectual property regimes and their effects on culture and innovation.